In this episode, our guest is Senior Counsel Graham Harris, who has been part of Hong Kong’s legal landscape for almost four decades, first as a government prosecutor, then as co-founder of Liberty Chambers. In the course of his distinguished career, Graham has often worked with, and sometimes opposed, our Senior Partner and podcast host Colin Cohen. Hence, they have much to discuss. Stay tuned.
Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter
In this episode, our guest is Senior Counsel Graham Harris, who has been part of Hong Kong’s legal landscape for almost four decades, first as a government prosecutor, then as co-founder of Liberty Chambers. In the course of his distinguished career, Graham has often worked with, and sometimes opposed, our Senior Partner and podcast host Colin Cohen. Hence, they have much to discuss. Stay tuned.
Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter
[00:00:32] Colin: Welcome, Graham to Law & More. Graham Harris is my guest today. He's a senior council. Graham is a specialist in criminal law with a large emphasis towards white collar crime and regulatory matters. As well as defending serious cases and complex fraud.
[00:00:50] Colin: He has been known occasionally to do some prosecutions on behalf of the Independent Commission against Corruption and Securities Futures Commission. Graham previously was a government prosecutor, and in 1995 he entered private practice. In 2003, he co-founded Liberty Chambers where he remains to this day.
[00:01:09] Colin: Graham, welcome to Law & More. And like I asked all our guests at the very beginning what's been keeping you busy recently,
[00:01:17] Graham: Bits and pieces, Colin, but before we go there let me thank you for your invitation. I'm delighted to be here and I hope I have something useful to add.
[00:01:28] Colin: I'm sure you do. So anything of real interest in keeping you busy?
[00:01:31] Graham: I have a couple of district court trials coming up over the next few months. I have a very difficult murder appeal coming up in July. I have advice work and at the moment that's about it, but it's quite enough to keep me out of mischief.
[00:01:46] Colin: Well, that's great news anyway.
[00:01:47] Colin: Before I discuss with you your distinguished career. Let's go back a bit into time and tell me a little bit about this. Now, I do know you went to Mill Hill School and I was at University College School. And my parents lived in the Hanser Garden suburb and Northern Line was Mill Hill. And UCS and Mill Hill had a few little, how could I say? Relationships were sometimes not the very, very best. But tell us about that, your early schoolings and what took you to law.
[00:02:15] Graham: I was at Mill Hill from 1965 to 1969. I think my only dealings with UCS were associated with the chess team, of which I was a member. And I remember coming over to UCS for an afternoon. Don't remember much more about it. It's a shame our paths didn't cross in those days Colin.
[00:02:35] Colin: Really might be a little bit before me, I think, only just as well. And I remember that I was just a little bit younger than you. Anyway, I'm interested in what made you study law?
[00:02:46] Graham: My heart was set on becoming an actor whilst at school. I did a lot of drama. I did a lot of amateur drama, and my heart was really set on a career on the stage. My father, late father, bless him, a very conservative gentleman. Thought that was the very last career that his son should be following.
[00:03:08] Graham: And so he encouraged me to at least consider a career in the law. I then did my degree at the College of Law in Chancery Lane. Having completed the degree, I then went back to my father and said, right, I've got the degree. What about a career on the stage and he said, well, look, go on and do your bar exams.
[00:03:26] Graham: Did that for a year at the same place. Went back to him and said, look, I'm now pretty much qualified. Can I give the stage and go? No, no, no, no, why don't you just try Pupillage and see how you get on? So I was then pupil to the late Michael Connell in Queens building in The Temple. And then having done Pupilage, I was then encouraged to give it a go.
[00:03:47] Graham: And then I found that I actually quite enjoyed it. So I came into the law in rather a roundabout way.
[00:03:54] Colin: Any acting, part-time acting?
[00:03:56] Graham: Yep. And in fact, as recently as about two or three years ago, I've actually done some acting in hong Kong. I did a lot of amateur acting at home where I lived in the provinces. I did a certain amount of stage work with The Middle Temple.
[00:04:12] Graham: A name you'll remember, chap by the name of Clive Anderson. Do you remember?
[00:04:15] Colin: I do.
[00:04:16] Graham: Well, he and I were contemporaries and we did quite a lot of work together. He of course made it big time in show business and sometimes I wish I'd followed him there.
[00:04:24] Colin: So tell me about your early days at the bar. What type of work were you doing?
[00:04:27] Graham: To begin with, I did largely matrimonial work, and it's gonna surprise you to hear that.
[00:04:33] Colin: You'll be a matrimonial Lawyer.
[00:04:34] Graham: The chambers in which I did my pupilage were very heavyweight matrimonial chambers. And I picked up a certain amount of over spill work from my pupil master, which I then took with me.
[00:04:46] Graham: I spent about the first two years of my career, so that would be what, 1975 through till about 1978 doing exclusively matrimonial work. And then I had a very long custody fight in front of a judge called Mr. Justice Neville Folks. And the case did not go our way. It resulted in two children being spirited away to South Africa to live with their lesbian mother.
[00:05:12] Graham: And I became so depressed by the outcome of the case. I went back to my chambers and said to my clerk, no more matrimonial work. Get me some crime, and that's how I found my way to the criminal courts.
[00:05:25] Colin: And doing both prosecuting and defending at the bar.
[00:05:28] Graham: Doing both prosecuting and defending.
[00:05:30] Graham: Prosecuting both to the Met Police, the Surry Police. I joined the Midland and Oxford Circuit, although the vast majority of my work was in the Southeast, in and around the London area. A lot of work in Kingston, Crown Court, Gilford, Crown Court. Very little work at courts that were convenient to my home, like St. Albans or Ailes Spree, but nevermind. And yeah, a mixed between prosecuting and defending.
[00:05:58] Colin: Enjoyed it.
[00:05:59] Graham: I loved it.
[00:05:59] Colin: 1984, you decided to come to Hong Kong. Relocated. How on earth did that come about? Tell us more.
[00:06:07] Graham: One of my closest friends in my then chambers was a gentleman by the name of Stephan Gannon, who to this day is General counsel with the Monetary authority in Hong Kong. In the summer of 1983, he told us he was leaving chambers and he was coming to work for the Attorney General's Chambers in Hong Kong.
[00:06:26] Graham: My then head of Chambers, Malcolm Knott said, take this guy out for dinner and talk him out of this nonsense of coming to Hong Kong. I failed and Stephan succeeded in talking me into it. With the result that I made an application, I was interviewed at the old Hong Kong government building in Grafton Street in Mayfair by the much Lamented Max Lucas, who was then Director of Public Prosecutions.
[00:06:52] Colin: Yes, I remember him.
[00:06:53] Graham: And then I arrived in Hong Kong on Friday, the 13th of January, 1984. And the reason I can be so precise, you may remember that was the day of the taxi driver riots in Kowloon. And I remember going out to dinner during the first evening, being told by the head waiter in the restaurant, In Mong Kok, it's not safe for you to leave the restaurant.
[00:07:15] Graham: There's a riot going on outside. And I thought to myself, where on earth have I come?
[00:07:20] Colin: So you came to Hong Kong and you were initiating the prosecution's division, which was the then attorney General's chambers before the handover.
[00:07:28] Colin: I understand you got seconded quite quickly into the ICAC, is that correct? Tell us more about that.
[00:07:33] Graham: In those days, the ICAC had its own team of council from the Department of Justice or the Attorney General's Chambers, who actually had offices in Murray Road Car Park building. So we were in house, on site, and there would've been about seven of us at that time. The interesting thing about doing that sort of work is that you would see a case through from its very inception.
[00:07:59] Graham: In other words, at an investigation stage, you would conduct all of the hearings right the way up until, even appeals. And one occasion, I don't think you were there, Colin, but I actually saw a case all the way from Investigation Stage to a concluded appeal in the Privy Council. It was related to a case that you and I did together.
[00:08:18] Colin: Oh, right.
[00:08:19] Graham: But you'll remember George Tan.
[00:08:21] Colin: Yes.
[00:08:21] Graham: It was a George Tan case relating to other proceedings against him in the district court that were going along alongside the BMFL case.
[00:08:30] Colin: Right, we'll talk about that a little bit. I mean, that's very interesting cause I arrived Hong Kong in 1981 a little bit before you.
[00:08:36] Colin: What's quite interesting that after spending a lot of time in the ICAC, you then were recruited by the Commercial Crimes Unit, of the Attorney General's chambers. And then you concentrated on prosecution of very serious corruption, white collar crime. And you then rose up the ranks to Deputy Principal Crown Council. Did he enjoy yourself in those early days?
[00:08:57] Graham: Yes I did. In those days, the commercial crimes unit was still very much in its infancy. But one thing that has always interested me is the shift in serious crime from the time that I first arrived and you did until later times. When I first came here, financial crime wasn't at the forefront of the attorney general's chamber's calendar of offenses in those days almost monthly, there would be an armed shootout in Hong Kong. Bank robberies, gold robberies, triad choppings, and a lot of very violent crime. These days, that position seems to have changed significantly.
[00:09:40] Graham: Anyway, I digress. More and more emphasis was being placed on commercial crime, corruption, fraud, this type of thing. And the commercial crimes unit of the attorney generalist chambers was expanding. I was asked to join them. I prosecuted a gentleman by the name of Peter Oswald Scales, which was my test case, which went horribly off the rails because it was a case in which we were given a very strong indication by the trial judge that there would be a suspended sentence of imprisonment if this man pleaded guilty at an early stage.
[00:10:13] Graham: And the judge was persuaded to change his mind. I dunno if you remember
[00:10:16] Colin: I remember it very well because I'm the founding partner of Melville Boase. Peter Scales was his client.
[00:10:22] Graham: Oh my goodness me.
[00:10:23] Colin: And you now recollect that Mel was the solicitor. Our firm was formed in 1985.
[00:10:29] Colin: Myself and Mel established a firm whilst I was at the University, and Mel was defending Peter Scales, and I remember it very, very well.
[00:10:37] Graham: Well Funnily enough, years and years later, when my father came to live in Hong Kong, he was in an old folks home in Kowloon Tong. And Peter Scales was one of his associates who were in the same old people's home. And I remember Peter saying to me one day, haven't I seen you somewhere before. This would've been in the mid 2015, something like that.
[00:10:59] Graham: And I was very careful to avoid the subject.
[00:11:01] Colin: Now around that time when you were then prosecuting, and that's the first time when we met, I'm not gonna use the word cross swords, because I never crossed swords with anybody. But I started off getting an introduction to act for someone called Hashim Shansudin, and that was all part of the BMFL, massive frauds. And the allegations regarding Carrian Group, George Tan. I acted for him first, and then I acted for another gentleman with another banker.
[00:11:30] Colin: Then I acted for Lorraine Osmond, the longest ever extradition case in the UK in London. And when he fought extradition for seven years, and you and I were together and I remember vividly many, many interesting times with you on the opposing side, in particular with regard to our expeditions out to the United States of America.
[00:11:50] Colin: Do you remember that?
[00:11:51] Graham: I remember it well and fondly.
[00:11:53] Colin: To tell our listeners what was happening. There was, at a stage they had to get evidence from the US. Basically old days before you had lots of treaties and mutual legal assistance whereby you had to go to the US to get the actual physical banking evidence to show the flow of funds.
[00:12:08] Colin: Never would've happened today. And first of all, you all went up on your own, got all that evidence. Without even asking us to come along. And then we were able to succeed on a habeas corporates application to say this was all very, very unfair. And therefore you had to start all over again.
[00:12:24] Colin: And then we were invited to go along and the great thing was. They thought, well, I should really go along and we were there in San Francisco before a nice magistrate and you remember what happened?
[00:12:36] Graham: I remembered it extremely well. I think we'd taken the view early on as this was just merely formal evidence. There was no difficulty in us taking it without your participation. On reflection, that was obviously wrong. There was also a problem that both myself and the late Graham Grant who were both prosecuting this case, had had ourselves made commissioners or co-commissioners.
[00:12:59] Graham: That's something I think you attacked on a habeas corpus as well.
[00:13:02] Colin: We did as well, yes.
[00:13:03] Graham: So we found ourselves returning and we had a very happy time in San Francisco, later in New York. And you having made such a fuss about not being invited to participate, then chose not to participate in the revised hearings, which tactically I think was a very wise move.
[00:13:21] Colin: I did turn up. I recollect we had a wonderful dinner, night afterwards, I did turn up for a few minutes and I said to this magistrate, Well this is all totally unfair. We have no intention in participating and walked out. And then we caught up a bit later. Another colleague of mine, a friend of mine, and we had a wonderful meal in this restaurant in San Francisco where all the waiters were criminals who have been just released or were on parole, and they had sort of either records as long as your arms as well.
[00:13:49] Colin: I remember very nice evening. I remember that vividly.
[00:13:51] Graham: Remember it also well. You and I actually spent I think about eight years of my professional life against each other in that particular case. Because I started it in 1987, beginning 88.
[00:14:06] Colin: Yes, I remember.
[00:14:07] Graham: And I was still working on it right the way through until about 1994, 95. Eventually he came back.
[00:14:14] Colin: And the great story of all of this that my client ends up with doing seven years in prison in the UK. Comes back to Hong Kong, we had a nice new director of public prosecutions, John Wood, if you remember him, and we were able to do what's called a discussion that we were prepared to plead to certain charges.
[00:14:33] Colin: And this was accepted like a shot. But John Wood took the view that he should really appear in court as well before the judge for the sentencing. And you were there and all the rest. And somehow we were able with my team, Martin Thomas, to get a very light, well, a sentence of one year.
[00:14:51] Colin: But of course, we all agreed to take into account the time spent in the UK. But it was a very, very light sentence. If I recollect,
[00:14:59] Graham: What might interest your listeners is that this particular case, the BMFL case at that time was one of the largest frauds on a bank of all time, and involved at least an allegation of the receipt of corrupt payments. I think one of the charges was in the sum of about 196 million US dollars.
[00:15:22] Graham: Am I right?
[00:15:22] Colin: You are correct. The total fraud was approximately 800 million US in the 1980s. The alleged corruption around here amounted to approximately the correct US dollars plus another, a little 20 million pounds as well. So, it was a very, very, very serious matter as well.
[00:15:43] Colin: And it was a case that involved considerable amount of hard work. I was flying backwards and forwards, taking instructions.
[00:15:49] Graham: And you were writing letters to me on at least a daily basis, sometimes two or three a day, driving me quietly mad. But I say that in the nicest possible way.
[00:15:58] Colin: Yeah, that was good. So you spent your time in the Department of Justice, you rose up the ranks, your highest position you were deputy principal, crown council, and then in 1995 you decided to leave and go to private practice.
[00:16:13] Graham: Yeah.
[00:16:14] Colin: Why?
[00:16:14] Graham: Two reasons. One, I missed the independence of being at the private bar. By that time I had been a civil servant for about 11 years, and I thought that was enough. People were saying that there were good pickings at the private bar, and that one could make a very comfortable living. And I thought then, well maybe the time has come. Also at that time without wishing to be controversial.
[00:16:39] Graham: They were following a policy of localization within the department, which meant that local people were favored for promotion, not necessarily on merit. The morale at that time was suffering a little bit because of the Chris Harris scandal, the Warwick Reed scandal. And the morale was not as it should have been, and that all encouraged me to make a move. And so I joined Gilbert Robbs Chambers.
[00:17:08] Colin: Yeah. And just for our listeners, Warwick Reed was a prosecutor, very senior, and obviously he was a very corrupt prosecutor who took quite a lot of money to, how could I say.
[00:17:19] Colin: He was quite clever. He took the money and said, I'll stop the prosecution, but never did anything about it, which is even worse.
[00:17:24] Graham: And then banked the money.
[00:17:25] Colin: Yes. And took the money to New Zealand.
[00:17:27] Graham: He was in effect, my direct boss at that time, which made me feel very uncomfortable.
[00:17:31] Colin: So you, you joined Gilbert Rodways Chambers.
[00:17:34] Colin: Mm-hmm. And then you then started into private practice.
[00:17:37] Graham: Yes, I did. You were one of the very first solicitors to instruct me.
[00:17:40] Colin: I was indeed. And I only instruct the best. And I remember, I instructed you on a very interesting case. And then we dotted lots of cases where I was your instructing solicitor over many years.
[00:17:50] Graham: Yes, very, very happy association, Colin.
[00:17:53] Colin: Tell me a little bit about your work. In the early days.
[00:17:55] Graham: In those days, you took whatever was coming. And it was at a time when not only did I do a certain amount of criminal work, but I started doing quite a lot of regulatory work. Because it was at a time when the insider dealing tribunal was starting to do more and more cases. Not in a criminal jurisdiction, but in a sort of quasi criminal jurisdiction. And that was a little bit of a cottage industry because not many people wanted to do it. I took the view that there wasn't a great deal of law in it and that one could learn it quite quickly. And so I carved for myself a little bit of a niche in that area. Whilst at the same time doing as much criminal work both defending and a certain amount of prosecuting as I could. And I was lucky, and the work started to come in.
[00:18:44] Colin: Yes. I was instructing you and my firm and moey was instructing you quite a lot of cases in particular. One of the interesting cases we did was for shore piling cases. And again, that's actually where you're living very close to where the shore piling took place.
[00:18:58] Graham: And I actually own a flat in the very building then.
[00:19:01] Colin: It was quite interesting. One way of making a little bit of money on the side, it was whereby you had to do the pilings and it was felt, but if you made the pilings a little shorter and they really were, they never thought there could be any danger to anyone else.
[00:19:15] Colin: You could make some money by selling off all the concrete and all the other equipment as well.
[00:19:20] Graham: And save a lot of time.
[00:19:21] Colin: A lot of time and get the buildings up. And I remember you and I going around this to having a little look at it as to how you deal with it and how we managed to to work it all out
[00:19:29] Graham: I had a ride in your Jaguar.
[00:19:31] Colin: I remember that very well. And then also, the other great thing about the case, we did very well for the client and we got quite a light sentence. Presumably, I think we did a deal.
[00:19:39] Colin: We
[00:19:39] Graham: we did too well.
[00:19:40] Colin: Too well, and then the court went into the court of appeal and the court of appeal somehow took the view this was the most serious ever case they had and gave you and I the biggest roasting I think I had for a long time. A very nice one.
[00:19:53] Graham: Well, what happened? Our client got six months. He then went and served it. We were on notice that the prosecution wanted to review it.
[00:20:01] Graham: The review wasn't actually heard for a couple of years. By which time the client had done his time and he'd come out. The Court of Appeal, then sent him back for five years.
[00:20:13] Colin: Yes, it was very, very heavy. And they said that it should have been more than five years. They said, well, we're only going for five years because he's been out for some time.
[00:20:19] Graham: I think what they did is they took the view that the risk to public safety was so extreme in that sort of case that a deterrent sentence was called for to send a message to developers, you build buildings properly.
[00:20:33] Colin: I think so as well. Again, just for our listeners here in Hong Kong, are now in other places that you can now be Secretary for Justice or the director for Public prosecutions.
[00:20:43] Colin: If he is of a view that the sentence is wrong in principle or manifestly inadequate, they can go and get leave and we can then go to the Court of Appeal and the Court of Appeal can review the sentence as well. It's used pretty rarely, actually, not as much as it was at one stage. But now the sentencings, judges take their time with sentencing.
[00:21:04] Graham: And the exercise of a discretion in favor of leniency is becoming increasingly more rare.
[00:21:11] Graham: But I was actually horrified when I first arrived in Hong Kong at this concept of a review of sentence. Because in England and Wales where I'd practiced at the Bar, there was no such thing. Interestingly, they brought it in a few years later.
[00:21:26] Colin: Exactly, exactly.
[00:21:27] Graham: And if you did an appeal against sentence in the Court of Appeal in England back in those days, right. The prosecution wasn't even represented. It was a battle between you and the court to try and persuade the court that your appealing against sentence had merit. So when I arrived here and saw the very proactive view that the prosecution took in relation to sentence, that came as a bit of a surprise to me.
[00:21:50] Colin: You spent quite some time at Gilbert Robway's Chambers, changing the name to Gary Plowman's Chambers. You've now established Liberty Chambers. Tell us a little bit about how that came about in earlier on when you set up your chambers.
[00:22:03] Graham: This was in 2003. And a very close friend and colleague was a chap called Alexander King. He and I were both in Gary Plowman's chambers. Alexander King had always had this vision that he wanted to start his own chambers. He asked if I was interested. I told him that I was, although it carried with it an enormous risk. Because at that time, Gary Plowman's Chambers was by far the most successful set of criminal chambers in Hong Kong.
[00:22:30] Graham: Anyway, to cut along, story short, we gave it a go, we set up shop. We started with about, I think Sandy, myself, five juniors. And then over the years we recruited more and more people. The idea was at first to give young, newly called barristers a springboard, a place to operate from before they actually developed their practice.
[00:22:54] Graham: But more and more people wanted to stay. We moved premises in 2009 to acquire some more space and as we speak. Now we have got 25 Barristers.
[00:23:05] Colin: 25 Barristers and you as well. Very sadly Sandy's no longer with us having passed in 2015. I remember instructing him on numerous cases. And even the case I'm involved in right now, he was involved which is ongoing, which I can't say anything about.
[00:23:19] Graham: I think I know the case.
[00:23:20] Colin: In his heyday, he was really absolutely amazing the way he did his cases. Fond memories?
[00:23:26] Graham: Yes, we miss Sandy enormously.
[00:23:28] Colin: He was a real colorful figure, as well. You then Became a Senior Council.
[00:23:33] Graham: 2011.
[00:23:34] Colin: I was badgering you earlier on to become senior council a lot earlier, but you didn't, you waited a little bit.
[00:23:41] Graham: I waited until the indications were that I get it. I didn't want to apply and fail. For reasons we won't go into, a slightly complicated private life. I wasn't sure, how well that would go down with the establishment.
[00:23:57] Graham: But eventually I applied. People were very kind and they were very supportive. And I got it.
[00:24:03] Colin: And you're now Senior Council. When you became senior council, a lot of work come in your way. There were numerous, numerous cases you took on.
[00:24:11] Graham: Yeah.
[00:24:11] Colin: Which were very, very well known. You were prosecuting some beforehand. Some very, very well known people you were defending as well.
[00:24:19] Graham: Yep, carson Young is a name that springs to mind. I then had as you did an involvement in the Raphael Hoy case. Various other cases that maybe we better not identify in particular. But yeah, those sorts of cases are now becoming, I think, fewer and further between, not coming in quite so rapidly as they did before.
[00:24:41] Graham: And you will have noticed Colin in recent times, one of the changes, which is no doubt for a good reason, is the use of Cantonese in the Hong Kong courts at different levels more and more frequently. I speak very bad Cantonese and would never be in a position to litigate in Chinese, but I suppose it is a good thing.
[00:25:02] Graham: That parties, witnesses, members of the public can go into a court and understand what's going on.
[00:25:07] Colin: Especially in the magistrates courts.
[00:25:08] Colin: Now, I would say that when I was in the magistrates court not too long ago, and even in the district court. In court number one in the plea court, it's all handled mostly in Cantonese except for those other clients who are Filipino or minorities, as well. Very, very little of it's is in english.
[00:25:27] Graham: I'd say 90% of matters in the Magistracy are in Cantonese. I'd say 60 to 70% in the district court. And it's even increasing in the high court even before juries.
[00:25:40] Colin: You have a reputation of being, everyone says the best mitigator in the whole of Hong Kong.
[00:25:47] Colin: Is go to Graham Harris. And to help my listeners, Mitigators, whereby the client pleads guilty and he needs a magnificent brief who's gonna say wonderful things to get the lowest possible sentence.
[00:25:58] Colin: And you seem to have the reputation, the ability to at least try and persuade the judges here to try to be as merciful as they can. Everyone says that to you. I think you know that.
[00:26:09] Graham: Well, it's very sweet of people to say that. I certainly give mitigation a hundred percent. It's not unusual, I'm afraid, in Hong Kong, once convicted, defense Barristers sometimes give up the ghost and they think there's no point in saying anything. And so somebody is then sentenced often to long terms of imprisonment without having the case painted in the most attractive light possible.
[00:26:31] Graham: I have always taken the view that you pull all the stops out and you give it a hundred percent. Whether you are mitigating after a plea of guilty or you're mitigating after conviction. One of the changes that I have noticed in recent times that I have to be a little tiny bit careful what I say, because I don't mean this to sound critical, is that there seems to be a reluctance in this day and age of judges at all levels to depart from what perhaps has become an established norm in terms of sentence and a reluctance to exercise a discretion in favor of leniency.
[00:27:11] Graham: I dunno if I'm being unfair, I hope I'm not. And one of the other problems we have which again is I've gotta be in my bonnet about, is that advocates in this day and age are now required to reduce everything in advance into writing. Even a plea in mitigation, you're expected to file a day or two before the hearing, a bundle containing a full written mitigation, various materials that support the mitigation cases. So when it comes to the actual hearing, the judges read it all, and the judges come to a preliminary review and the magic of the advocacy, the magic of the mitigation is then sometimes a little lost on them.
[00:27:53] Graham: And that's something I'm sad about.
[00:27:55] Colin: What I'm finding at the moment, I'm doing a lot of these drugs cases. You've got the tariffs as well and it's very, very difficult. You know what the sentencing's gonna be, that means you've been in Hong Kong as a applying for refugee status and or your overseas as well.
[00:28:10] Colin: And they're just set tariffs at the moment. And the judges will tinker a little bit with it, but they know they cannot go outside the band. Cause otherwise they know they're going to be reviewed. I don't like to say the sword of damocles hanging over the head, but it is there. That worries me a lot.
[00:28:25] Graham: It becomes almost a matter of arithmetic than a matter of mitigation. Although the court has said time and time again, look, sentencing is not an exact science, it's a form of art. It seems particularly in drugs cases to becoming increasingly more a matter of science.
[00:28:43] Colin: Let's talk a little bit about politics. That's a big elephant in the room, but the politics I'm gonna talk about slightly different. It's the the Hong Kong Bar Association because you are on the committee of the Hong Kong Bar Association, you were careful, representing the criminal bar there.
[00:28:57] Graham: Correct.
[00:28:57] Colin: For many, many years. Memories, your views on that? The Bar has changed dramatically now.
[00:29:04] Graham: Yes, it has. It's no longer the closely knit old boys network that it used to be. Some would say that's a good thing. It's become increasingly more regulated. When I first started, the Bar Code of Conduct was a fairly flimsy document, which you could thumb through in about five or 10 minutes.
[00:29:24] Graham: And I guess the same would probably be said of the solicitor's rules of conduct. It's now a large volume. To serve effectively on the Bar Council, if you're going to read all of the papers that you're supposed to read, it is a thankless task. It takes up a great deal of time. And I got frustrated by the fact that very few people seem to take the Bar Council seriously anymore. There was a time when you and I first came when the bar council was so strong, it could actually stop legislation in its tracks if the Bar spoke out against that particular legislation.
[00:30:01] Graham: The bars Kudos in the public eye seems to have reduced in recent times, although with the present chairman and the present committee, I think there's a hope that we'll perhaps be able to reverse that.
[00:30:14] Colin: And this is Victor Dawes, who you actually nominated.
[00:30:16] Graham: Yes, I did. Yeah. I'm a great fan of him
[00:30:18] Colin: So, so he's now seems to be sort of crossing bridges going into China, enhancing the legal profession's status.
[00:30:26] Graham: He is not terribly interested in politics and I've always said whilst lawyers may make very good politicians, politicians do not make very good lawyers. I think Victor's doing a sterling job in very, very difficult circumstances. The politics of the law in recent times has been quite controversial.
[00:30:47] Graham: I mean, most of us are great believers in a completely independent judiciary, an independent and a strong profession. And I listened with some alarm. Two, three years back, as I'm sure you did when I heard a very Senior Council and someone who at the time was Secretary of Justice saying there is no place for the separation of powers in Hong Kong.
[00:31:15] Colin: Yeah, I remember that.
[00:31:16] Graham: Respectfully, I disagree with that spirit. Certainly that approach and one of the things that has made us great is an independent judiciary. And I get very, very nervous if I feel that's being compromised in any way, shape or form.
[00:31:30] Colin: did you ever want to sit as a deputy judge?
[00:31:33] Graham: I once applied together with Gareth Luga Morson, and I think this would've been in the summer of about 1994.
[00:31:41] Graham: And my invitation or my application was declined. To sit as a deputy district judge. I've never really been interested in it. As your listeners will gather, I've got a big mouth, I can't stop talking. I'm not a great listener, and so I'm not entirely sure that I would've made a good judge.
[00:31:59] Colin: At the moment now, one of the sort of issues, which is going around is the, admission of King's Council from London or from anywhere, and coming to Hong Kong in the past, in our early days, it was quite common. It's become a little bit more difficult.
[00:32:13] Graham: It was almost routine.
[00:32:14] Colin: Yeah, routine. Now you gotta show that the case warrants it, the guidelines. Hong Kong is unique, nowhere else in the world, if I wanted to go and practice and do a case in the US. I wouldn't stand a chance and vice versa.
[00:32:27] Colin: It doesn't work, it's only Hong Kong. Seems to be the last place left. It used to be Singapore, it used to be Malaysia. Your views at the moment now, there's been some controversy.
[00:32:36] Graham: I've always been a believer that a person who's facing really serious charges should have as of right, counsel of his choice. And if that included an overseas council in particular a specialist from London, for example, Tim Owen or Claire Montgomery or any of the big names. As long as the local Bar was not disadvantaged, then I took the view, why not?
[00:33:05] Graham: Now, that is a view that isn't shared by everybody. In more recent times there's an argument that the local bar is disadvantaged and obviously there's a vested interest in trying to protect the best interests of the local bar as juniors and senior council alike.
[00:33:23] Graham: There was a tradition before that if overseas council was coming into a case, there needed to be a full local team, including Senior Council.
[00:33:33] Graham: And certainly junior council before an overseas submission would even be contemplated. That's changed a little bit.
[00:33:38] Colin: A little bit. It's changed as well. Anyway, away from the law. Hobbies, passions, music.
[00:33:45] Colin: Tell us about your band.
[00:33:46] Graham: Oh my goodness me. I was a semi-pro bass guitarist and musician. And I actually got permission from the government to do that work from about 1989 through till about 1994.
[00:34:01] Graham: And in fact, I used to see you from time to time bopping on the dance floor in front of me. Much to my amusement. Yeah, it brought me a lot of fun. It's something that I had less and less time for as I join private practice. I still play, but I only play for my own satisfaction. But it brings back some very, very happy memories.
[00:34:22] Graham: Playing in places like The Wanch Bar, which has some notoriety. Various other bars in Wan Chai. The Surf Hotel in Sai Kung.
[00:34:30] Colin: Well, I remember going up there, going back in time. I think he exists in some form at the moment.
[00:34:35] Graham: I'm not even sure. Also, I still have a big interest in drama. Did some plays recently with a couple of other barristers and a Court of Final Appeal Judge with Frank Stock about two years ago. But at the moment the wretched Covid, the riots and all the rest of it. I think have played a great part in confining those sorts of interests.
[00:34:59] Colin: Yes. I mean, going forward with emerging from the pandemic, there's political change, how do you assess Hong Kong's future moving forward?
[00:35:08] Colin: I've been here a little bit longer than you, but you are here. Your views?
[00:35:11] Graham: I am quietly optimistic because Hong Kong has been through crises in the past. It's got through them, it's gone from strength to strength. And the wonderful thing, and I think probably one of the important reasons for Hong Kong's success is the entrepreneurial skills, particularly of the local Chinese.
[00:35:35] Graham: Whilst we have those entrepreneurial skills in abundance, then we'll find a way of making Hong Kong succeed. So I'm cautiously optimistic. Part of me is a little uncomfortable and a little bit uneasy about recent changes. But let's wait and see. What's your view? Are you optimistic?
[00:35:54] Colin: I'm always the optimist. At least for new Chief Executive, John Lee, he seems to be a little bit more focused, you listen to what he says. What he says makes sense. He's not sort of telling us off all the time as well. So I think that's an improvement. I think one thing which I do like to see that I was looking at Liberty Chambers.
[00:36:12] Colin: I see you got ex director of Public Prosecutions, David Long. He was a guest on my show. He's with you. And when I saw the number of Junior Barristers at the lower end of your chambers. They all are all very smart. They look like they're people for Hong Kong and they want to work and deal here, absolutely.
[00:36:28] Colin: So with all of that, with what's happening, I'm the optimist, I've been here for such a long time and this is the place I like to stay. Yourself, you are staying?
[00:36:37] Graham: Hong Kong's home.
[00:36:38] Colin: Exactly.
[00:36:39] Graham: I've been here now for nearly 40 years. You've been here for over 40 years. It's where my friends are and even though my children are all over the place. I've got some in New Zealand, some in the UK, some in Thailand. My future's here.
[00:36:52] Colin: Graham, it's been a pleasure, a privilege chatting to you. Thank you so much for joining us on Law & More.
[00:36:58] Graham: Thank you very much for having me.